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Compromising on copyright issues ... a stable equilibrium? After months of discussion,  yesterday  the Council’s permanent representatives committee (Coreper) common position   on the text of the draft Directive on Copyright in the Digital Single Market (DSM Directive). agreed a  The text thus approved will serve as a mandate for the presidency of the Council  [currently Bulgaria, but  Austria  as of 1 July]  to start negotiations with the European Parliament, once this has also agreed its own position. As readers may know, following the  proposal for a DSM Directive by the EU Commission   [on which see Katposts  here ]   the Council and the European Parliament are now the EU institutions tasked with adopting the draft directive and making it EU law  [if you wish to learn more about how the EU law-making process works, click  here ] . So, what are the key points of the  text   ...

Marcus felt slightly challenged after reading all those CJEU IP decisions ... It is a truth universally acknowledged , that  online IP enforcement  must be (increasingly) in want of an effective involvement of intermediaries in the enforcement process.  The topic thus turns to intermediary injunctions, ie something that at the EU level is substantially enshrined in two pieces of legislation, these being: the  InfoSoc Directive  (Art 8(3)), as far as injunctions in copyright cases are concerned; and the  Enforcement Directive  (Art 11, third sentence), with regard to the other IP rights.  The relevant provisions have similar content.  Art 8(3) states that " Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right." The third sentence of Art 11 provides that "Member Stat...

Who's responsible for making this video available: (a) the user-uploader (b) YouTube (c) both of them (d) Merpel (e) no one Can YouTube be considered primarily responsible (and, therefore, potentially liable) for the making available of user-uploaded content through its platform? In other words: can YouTube be considered as directly making acts of communication to the public? This is the crucial question Germany’s Federal Court of Justice (BGH) will need to address in a case ( I ZR 140/15)  that was heard last week. The decision is due on 13 September. The case As  summarized  by the BGH press office, the claimant in this case is a music producer who has sued Google/YouTube over the unauthorized making available, on the defendants’ platform, of videos containing musical works from the repertoire of soprano  Sarah Brightman . The claimant had signed an exclusive contract with this singer in 2006, allowing him to  exploit recordings of her  p...

Is there even such thing called 'originality'? Is the originality requirement in copyright a non-requirement? In other words: is there any meaningful threshold to copyright protection? I’ve had the opportunity to discuss this issue three times over less than a month: first, at a workshop in Berlin, then with a Belgian student and, finally, with an IP lawyer based outside Europe. If these three situations had anything in common, it was the suggestion that the originality requirement is not really a requirement – whether under EU or US law – and that copyright protection is very easy to obtain. While it is true that originality is not a particularly difficult condition to satisfy, it is still a requirement and: (1) it is not a mundane one, both in the EU and the US; and (2) there are a few instances in which the threshold would unlikely be passed. The EU originality requirement If we start from the EU, since the landmark decision of the Court of Justice of th...